Thomas v. Cate

Filing 6

ORDER by Judge Claudia Wilken DENYING PETITIONERS 5 MOTION TO DIRECT STATE COURT TO PROVIDE TRIAL TRANSCRIPTS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 12/28/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LARRY DARNELL THOMAS,

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Petitioner,

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ORDER DENYING
PETITIONER’S MOTION TO
DIRECT STATE COURT TO
PROVIDE TRIAL
TRANSCRIPTS

v.

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No. C 11-4709 CW (PR)

MATTHEW CATE,

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Respondent.

(Docket no. 5)

________________________________/

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United States District Court
For the Northern District of California

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Petitioner, a state prisoner, filed this pro se petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging

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his state conviction.

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motion to stay the petition while he exhausts his ineffective

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assistance of counsel claims in state court.

On October 26, 2011, the Court granted his

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Now pending is Petitioner’s motion asking this Court to

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direct the California superior court to provide him with a missing

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portion of his state trial transcripts or, alternatively, to grant

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summary judgment in his favor.

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(1) that he was never provided with a transcript of the first

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portion (Volume I) of his state criminal and trial proceedings;

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(2) neither his trial nor appellate attorney have a copy of the

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transcript; (3) his former attorney has attempted to assist him in

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obtaining a copy of Volume I but has been unsuccessful; and

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(4) even the superior court does not have a copy of the

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transcript.

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first portion of the trial may not have been transcribed.

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Specifically, Petitioner states

Based on the above, Petitioner speculates that the

The Court must deny Petitioner’s motion.

Federal district

courts are without power to issue mandamus to direct state courts,

state judicial officers, or other state officials in the

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performance of their duties.

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925 F.2d 1160, 1161-62 (9th Cir. 1991).

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cannot order the state court or any other state official to

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provide Petitioner with the missing volume of the transcript,

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assuming such portion of the trial was in fact transcribed.

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In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying

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petition for writ of mandamus that would order state trial court

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to give petitioner access to certain trial transcripts which he

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United States District Court
For the Northern District of California

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sought in preparation for filing state post-conviction petition;

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federal court may not, as a general rule, issue mandamus to a

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state judicial officer to control or interfere with state court

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litigation).

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See Demos v. U.S. District Court,
Consequently, this Court

See

However, a state’s failure to provide a full record of a

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trial may violate a defendant’s due process rights and form the

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basis for federal habeas corpus relief.

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F.2d 646, 648 (9th Cir. 1989).

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determination: (1) the value of the transcript to the defendant in

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connection with the appeal or trial for which it is sought; and

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(2) the availability of alternative devices that would fulfill the

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same functions as a transcript.

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petitioner must establish prejudice from the lack of recordation

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to be entitled to habeas corpus relief.

See Madera v. Risley, 885

Two criteria are relevant to this

See id.

A federal habeas

See id. at 649.

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If Petitioner intends to assert a claim in the present

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petition for the violation of his right to due process based on

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his inability to obtain a portion of the trial transcript, he can

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do so only after he has exhausted state remedies as to that claim

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in state court and then moves to lift the stay and amend the
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present petition to include all of his exhausted claims.
Accordingly, Petitioner’s motion to have this Court direct

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the California superior court to provide him with his trial

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transcripts or, alternatively, to grant summary judgment in his

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favor, is DENIED.

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This Order terminates Docket no. 5.

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IT IS SO ORDERED.

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Dated:

12/28/2012

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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